[Federal Register Volume 73, Number 232 (Tuesday, December 2, 2008)]
[Proposed Rules]
[Pages 73219-73222]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-28616]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 622

[Docket No. 070719384-81468-03]
RIN 0648-AV80


Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic; 
Reef Fish Fishery of the Gulf of Mexico; Gulf of Mexico Gag Grouper 
Management Measures

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and 
Atmospheric Administration (NOAA), Commerce.

ACTION: Temporary rule; interim measures; request for comments.

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SUMMARY: This final rule implements temporary measures to reduce 
overfishing of gag in the Gulf of Mexico (Gulf). This final rule 
reduces the commercial quota for gag, establishes a gag bag limit 
within the grouper aggregate bag limit, and extends the recreational 
closed season for gag. In addition, if Federal regulations applicable 
to gag, red snapper, gray triggerfish, or greater amberjack are more 
restrictive than state regulations, this rule requires vessels with 
Federal reef fish permits to comply with Federal regulations regardless 
of where such fish are harvested. The intended effect is to reduce 
overfishing of gag and increase compliance with Federal regulations 
designed to end overfishing or rebuild overfished reef fish stocks in 
the Gulf.

DATES: This rule is effective January 1, 2009 through May 31, 2009. 
Comments must be received no later than 5 p.m., eastern time, on 
January 2, 2009.

ADDRESSES: You may submit comments on this temporary rule, identified 
by ``0648-AV80, by any of the following methods:
     Electronic Submissions: Submit all electronic public 
comments via the Federal e-Rulemaking Portal: http://
www.regulations.gov.

[[Page 73220]]

     Mail: Peter Hood, Southeast Regional Office, NMFS, 263 
13th Avenue South, St. Petersburg, FL 33701.
     Fax: 727-824-5308; Attention: Peter Hood.
    Instructions: All comments received are a part of the public record 
and will generally be posted to http://www.regulations.gov without 
change. All Personal Identifying Information (for example, name, 
address, etc.) voluntarily submitted by the commenter may be publicly 
accessible. Do not submit Confidential Business Information or 
otherwise sensitive or protected information.
    To submit comments through the Federal e-Rulemaking Portal: http://
www.regulations.gov, enter ``NOAA-NMFS-2008-0291'' in the keyword 
search, then select ``Send a Comment or Submission.'' NMFS will accept 
anonymous comments (enter N/A in the required fields, if you wish to 
remain anonymous). You may submit attachments to electronic comments in 
Microsoft Word, Excel, WordPerfect, or Adobe PDF file formats only.
    Copies of documents supporting this rule may be obtained from Peter 
Hood, Southeast Regional Office, NMFS, 263 13th Avenue South, Saint 
Petersburg, FL 33701.

FOR FURTHER INFORMATION CONTACT: Peter Hood, telephone: 727-551-5784, 
fax: 727-824-5308, e-mail: [email protected].

SUPPLEMENTARY INFORMATION: Gag are a part of the shallow-water grouper 
fishery of the Gulf of Mexico and are managed under the Fishery 
Management Plan (FMP) for the Reef Fish Fishery of the Gulf of Mexico. 
The FMP was prepared by the Gulf of Mexico Fishery Management Council 
(Council) and is implemented under the authority of the Magnuson-
Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) 
by regulations at 50 CFR part 622.

Background

    The Magnuson-Stevens Act requires NMFS and regional fishery 
management councils to prevent overfishing and achieve, on a continuing 
basis, the optimum yield (OY) from federally managed fish stocks. These 
mandates are intended to ensure fishery resources are managed for the 
greatest overall benefit to the nation, particularly with respect to 
providing food production and recreational opportunities, and 
protecting marine ecosystems. To further this goal, the Magnuson-
Stevens Act requires fishery managers to specify their strategy to 
rebuild overfished stocks to a sustainable level within a certain time 
frame, and to minimize bycatch and bycatch mortality to the extent 
practicable. This temporary rule addresses these requirements for gag, 
red snapper, gray triggerfish, and greater amberjack on an interim 
basis while the Council develops more permanent measures in Amendment 
30B to the FMP.
    The most recent gag stock assessment completed in 2006 concluded 
that the stock is not overfished, but is undergoing overfishing. 
Following a re-analysis in 2007, overfishing was still determined to be 
occurring. The Council's Reef Fish Scientific and Statistical Committee 
(SSC) concurred with the overfishing determination at its May 2008 
meeting. This temporary rule is necessary to reduce overfishing of gag 
by implementing temporary management measures while the Council 
develops more permanent measures to rebuild the gag stock to more 
sustainable levels. Although the gag stock was not considered to be 
overfished under any of the definitions of the minimum stock size 
threshold considered by the Council in Amendment 30B, the stock size 
was recognized to be below the stock size associated with harvesting 
the stock at OY (BOY). Therefore, these temporary management 
measures are designed to reduce overfishing and facilitate stock 
rebuilding toward BOY.
    In Amendment 30B, the Council, based on advice from the SSC, is 
proposing to set the 2009 total allowable catch (TAC) for gag at 3.38 
million lb (1.53 million kg). This value is based on the fishing 
mortality rate associated with harvesting OY. Under the Council's plan, 
TAC will increase to 3.62 million lb (1.64 million kg) in 2010, and 
again to 3.82 million lb (1.73 million kg) in 2011. TAC would remain at 
the 2011 level until revised based on a subsequent stock assessment and 
appropriate rulemaking. The Council also has proposed in Amendment 30B 
an interim allocation of gag between the recreational and commercial 
fisheries based on the average share during the years 1986 through 
2005. For gag, the allocation would be 61 percent recreational and 39 
percent commercial.
    NMFS and the Council analyzed these proposed interim measures and 
the measures contained in Amendment 30B in a single environmental 
impact statement. On August 8, 2008, a notice of availability of the 
draft environmental impact statement (DEIS) for this action and 
Amendment 30B was published (73 FR 46269). The Council took final 
action on the measures contained in Amendment 30B at their August 2008 
meeting and submitted it for Secretarial review in September 2008. The 
notice of availability of the final environmental impact statement 
(FEIS) published on October 24, 2008 (73 FR 63470), and the wait period 
ended on November 24, 2008. The rationale for these temporary measures 
is provided in the DEIS, FEIS, and the preamble to this temporary rule.

Management Measures Established by This Temporary Rule

Commercial Quota for Gag

    Consistent with the Council's proposed 2009 TAC in Amendment 30B 
and the proposed allocation between the recreational and commercial 
fisheries, this temporary rule sets the commercial quota for gag at 
1.32 million lb (598,742 kg), which is equal to the 2009 quota proposed 
in Amendment 30B. This quota is consistent with the annual catch target 
(ACT) and annual catch limit (ACL) guidance provided in NMFS' proposed 
rule on Magnuson-Stevens Act provisions, ACLs, and national standard 
guidelines (73 FR 32526, June 9, 2008).

Recreational Measures for Gag

    For the recreational fishery, this temporary rule establishes a new 
gag bag limit of 2 fish within the 5-fish aggregate grouper bag limit 
and an extended recreational closed season for gag from February 1-
March 31. These recreational measures are estimated to reduce gag 
landings by 26 percent and are consistent with ACTs and ACLs proposed 
in Amendment 30B which are consistent with guidance provided in NMFS' 
proposed rule on Magnuson-Stevens Act provisions, ACLs, and national 
standard guidelines (73 FR 32526, June 9, 2008).

Provision to Enhance Regulatory Effectiveness of Measures

Addressing Species Undergoing Overfishing

    NMFS and state fishery management agencies usually work 
cooperatively to implement consistent regulations in Federal and state 
waters, thus enhancing the effectiveness of enforcement and management 
of the fisheries. However, there are some situations in which Federal 
and state regulations differ. When there are less restrictive 
regulations in state waters, the effectiveness of Federal regulations 
diminishes. Therefore, if Federal regulations applicable to gag, red 
snapper, gray triggerfish, or greater amberjack are more restrictive 
than state regulations, this temporary rule requires any vessel with a 
Federal commercial permit for Gulf reef fish or a Federal charter 
vessel/headboat permit for Gulf

[[Page 73221]]

reef fish, as a condition of their permit, to comply with such Federal 
regulations, regardless of where such fish are harvested, i.e., in 
state or Federal waters. These species are undergoing overfishing. This 
measure will reduce overfishing and improve the effectiveness of 
Federal management measures and enforcement. The Council is proposing 
this requirement for all reef fish species in Amendment 30B.

Future Action

    NMFS finds that this temporary rule is necessary to reduce 
overfishing of gag and increase compliance with Federal regulations 
designed to end overfishing of red snapper, greater amberjack, and gray 
triggerfish. NMFS issues this temporary rule, effective for not more 
than 180 days, as authorized by section 305(c) of the Magnuson-Stevens 
Act. This temporary rule may be extended for an additional 186 days, as 
authorized by section 305(c) of the Magnuson-Stevens Act, provided the 
public has had an opportunity to comment on the rule and provided that 
the Council is actively preparing proposed regulations to address these 
overfishing issues on a permanent basis. The Council is preparing an 
amendment to address, on a permanent basis, gag overfishing issues and 
increased compliance with Federal regulations designed to end 
overfishing of red snapper, greater amberjack, gray triggerfish and 
other reef fish species in the Gulf.

Classification

    The Administrator, Southeast Region, NMFS, (RA) has determined that 
this temporary rule is necessary to reduce overfishing of gag and other 
reef fish species in the Gulf of Mexico and is consistent with the 
Magnuson-Stevens Act and other applicable laws.
    This temporary rule has been determined to be not significant for 
purposes of Executive Order 12866.
    The Assistant Administrator for Fisheries, NOAA, (AA), finds good 
cause to waive the requirement to provide prior notice and opportunity 
for public comment pursuant to the authority set forth at 5 U.S.C. 
553(b)(B), as such prior notice and opportunity for public comment 
would be contrary to the public interest. This temporary rule addresses 
overfishing of public fishery resources. In order to obtain the target 
reductions in harvest, adequately address overfishing, and protect 
public fishery resources, these measures need to be effective by the 
start of the fishing year in 2009. Delaying action to reduce 
overfishing of gag, red snapper, greater amberjack, and gray 
triggerfish in the Gulf of Mexico to provide further notice and 
opportunity for public prior to implementation would allow continued 
adverse impacts on the associated fishery resources, and increase the 
likelihood of a loss in long-term productivity from the component of 
the reef fish fishery these species represent. Additionally, this would 
increase the likelihood of more severe restrictions on these species in 
the future, which would result in additional adverse social and 
economic impacts on the associated fishery participants.
    This temporary rule is exempt from the procedures of the Regulatory 
Flexibility Act because the rule is issued without opportunity for 
prior notice and public comment.

List of Subjects in 50 CFR Part 622

    Fisheries, Fishing, Puerto Rico, Reporting and recordkeeping 
requirements, Virgin Islands.

    Dated: November 26, 2008.
John Oliver,
Deputy Assistant Administrator for Operations, National Marine 
Fisheries Service.
    For the reasons set out in the preamble, 50 CFR part 622 is amended 
as follows:

PART 622--FISHERIES OF THE CARIBBEAN, GULF, AND SOUTH ATLANTIC

    1. The authority citation for part 622 continues to read as 
follows:

    Authority: 16 U.S.C. 1801 et seq.
    2. In Sec.  622.4, paragraph (a)(2)(v) is suspended, and paragraphs 
(a)(1)(iv) and (a)(2)(xiv) are added to read as follows:


Sec.  622.4  Permits and fees.

    (a) * * *
    (1) * * *
    (iv) If Federal regulations in subparts A, B, or C of this part 
that are applicable to gag, red snapper, greater amberjack, or gray 
triggerfish in the Gulf of Mexico are more restrictive than state 
regulations, a person aboard a charter vessel or headboat for which a 
charter vessel/headboat permit for Gulf reef fish has been issued must 
comply with such Federal regulations regardless of where the fish are 
harvested.
    (2) * * *
    (xiv) Gulf reef fish. For a person aboard a vessel to be eligible 
for exemption from the bag limits, to fish under a quota, as specified 
in Sec.  622.42(a)(1), or to sell Gulf reef fish in or from the Gulf 
EEZ, a commercial vessel permit for Gulf reef fish must have been 
issued to the vessel and must be on board. If Federal regulations in 
subparts A, B, or C of this part that are applicable to gag, red 
snapper, greater amberjack, or gray triggerfish in the Gulf of Mexico 
are more restrictive than state regulations, a person aboard a vessel 
for which a commercial vessel permit for Gulf reef fish has been issued 
must comply with such Federal regulations regardless of where such fish 
are harvested. See paragraph (a)(2)(ix) of this section regarding an 
additional IFQ vessel endorsement required to fish for, possess, or 
land Gulf red snapper. To obtain or renew a commercial vessel permit 
for Gulf reef fish, more than 50 percent of the applicant's earned 
income must have been derived from commercial fishing (i.e., harvest 
and first sale of fish) or from charter fishing during either of the 2 
calendar years preceding the application. See paragraph (m) of this 
section regarding a limited access system for commercial vessel permits 
for Gulf reef fish and limited exceptions to the earned income 
requirement for a permit.
* * * * *
    3. In Sec.  622.34, paragraph (u) is suspended and paragraphs (v) 
and (w) are added to read as follows:


Sec.  622.34  Gulf EEZ seasonal and/or area closures.

* * * * *
    (v) Seasonal closure of the recreational fishery for red grouper 
and black grouper. The recreational fishery for red grouper and black 
grouper in or from the Gulf EEZ is closed from February 15 to March 15, 
each year. During the closure, the bag and possession limit for red 
grouper and black grouper in or from the Gulf EEZ is zero.
    (w) Seasonal closure of the recreational fishery for gag. The 
recreational fishery for gag in or from the Gulf EEZ is closed from 
February 1 through March 31, each year. During the closure, the bag and 
possession limit for gag in or from the Gulf EEZ is zero.
    4. In Sec.  622.39, paragraphs (b)(1)(ii) and (b)(1)(v) are 
suspended and paragraphs (b)(1)(viii) and (b)(1)(ix) are added to read 
as follows:


Sec.  622.39  Bag and possession limits.

* * * * *
    (b) * * *
    (1) * * *
    (viii) Groupers, combined, excluding goliath grouper and Nassau 
grouper -5 per person per day, but not to exceed 1 speckled hind or 1 
warsaw grouper per vessel per day, 1 red grouper per person per day, or 
2 gag per person per day. However, no grouper may be retained by the 
captain or crew of a vessel operating

[[Page 73222]]

as a charter vessel or headboat. The bag limit for such captain and 
crew is zero.
    (ix) Gulf reef fish, combined, excluding those specified in 
paragraphs (b)(1)(i), (iii), (iv), (vi), (vii), and (viii) of this 
section and excluding dwarf sand perch and sand perch--20.
* * * * *
    5. In Sec.  622.42, add paragraph (a)(1)(vii) to read as follows:


Sec.  622.42  Quotas.

* * * * *
    (a) * * *
    (1) * * *
    (vii) Gag -1.32 million lb (0.60 million kg), gutted weight, that 
is, eviscerated but otherwise whole.
* * * * *
[FR Doc. E8-28616 Filed 12-1-08; 8:45 am]
BILLING CODE 3510-22-S